CLA-2 RR:CR:TE 962542 BAS
Matthew Rinaldi
Director of Finance, Strategic Planning
Arquest, Inc.
101 Interchange Plaza
Cranbury, NJ 08512
RE: Classification of Disposable Diaper/Training Pants
Dear Mr. Rinaldi:
This is in reply to letters, dated December 23, 1998, March 3, 1999, and March 19, 1999, submitted on behalf of Arquest Inc. concerning a ruling on the classification of disposable diaper/training pants. You submitted a sample of the disposable diaper/training pants as well as samples of Huggies diapers and training pants (“Pull-ups”).
FACTS:
The merchandise under consideration is disposable diapers/training pants. The diaper/training pant is composed of: a topsheet-thermal bonded polypropylene (standard weight 2.4 grams), a pad composed of a homogeneous blend of fiberized softwood pulp (20.7 grams) and lightly cross linked sodium polyacrylate (8.0 grams), a backsheet consisting of a layer of polyethylene film (2.8 grams) and a layer of spunbond polypropylene (3.0 grams), elastic bands of spandex fibers with polyether soft segment (1.8 grams), glue hot melt resin 3.3 grams) and baking soda (1 gram). The total weight of the product is 43.0 grams.
The diaper/training pant has an elasticized waist and legs and features an animal print. Unlike a traditional disposable diaper having velcro tabs to fasten it together, the two sides are sealed together so that the diaper/training pant can be pulled on and off while standing or sitting.
ISSUE:
Whether the diaper/training pants are classifiable under heading 4818, HTSUSA, as diapers, under heading 3926, HTSUSA, as other articles of plastics or under heading 6209, HTSUSA, as babies’ garments?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
As the diaper/training pant is composed of 48% softwood pulp it is described in part by Heading 4818 which provides for inter alia sanitary articles of paper pulp. In addition to the paper pulp, 19% of the weight of the diaper/training pant is derived from the sodium polyacrylate, which is embedded within the absorbent layer. Thus, the diaper/training pant might also be provided for by Heading 3926, HTSUSA, “other articles of plastics and articles of other materials of headings 3901 to 3914.” The outer shell of the diaper, accounting for 19% of its weight is a spun bonded polypropylene top sheet and a back sheet consisting of a layer of polyethylene film covered on both sides with a layer of spunbonded polypropylene. Classifying the diaper/training pant according to the materials in its outer shell, it might also be classified in heading 6209 which provides for babies’ garments.
General Rule of Interpretation (GRI) 2 (b) directs that goods consisting of more than one material or substance are to be classified according to the principles of GRI 3. GRI 3 (a) provides, in pertinent part, that when two or more headings refer to part only of the materials or substances in a composite good the headings are to be considered equally specific in relation to those goods. This is the case here, therefore GRI 3(b) is applicable.
GRI 3(b) provides that mixtures and composite goods consisting of different materials or made up of different components shall be classified as if they consisted of the material or component which gives them their essential character. Customs has long classified diapers and incontinence pads according to the absorbent interior filling which provides the absorptive capacity. See HQ 959901, dated November 7, 1996; HQ 089785, dated June 5, 1992; HQ 082754, dated November 16, 1988; NY C81557, dated December 16, 1997, PD A86147, dated August 23, 1996; NY 886260, dated July 7, 1993; NY 851190, April 13, 1990. Similar merchandise, sanitary napkins and panty liners which also function to absorb bodily fluids, has also been classified according to that which provides the item’s absorptive capacity. See NY F80166, dated December 9, 1999; NY E80303, dated April 13, 1999; NY C89541, dated August 27, 1998.
In the instant case, then, the essential character of the diaper/training pant should be determined by evaluating which material provides the absorptive function of the diaper/training pant. Note VIII to GRI 3 (b) states that the factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity weight or value, or by the role of a constituent material in relation to the use of the goods.
The top sheet and back sheet of the diaper/training pant consist of polypropylene and a layer of polyethylene film covered on both sides with a layer of spunbonded polypropylene. The top and back sheet together account for 19% of the product. While the outer shell functions to provide the shape and comfort of the diaper, it does not merit equal consideration, for classification purposes as the materials of the interior filling as the outer shell does not contribute to the diapers absorptive capacity. We note that the outer shell enables the diaper/training pant to function as an undergarment but that particular function is not the primary value of a diaper/training pant. In fact, a onesie or cotton bodysuit is often worn over a diaper/training pant thereby functioning as the undergarment. Accordingly, classification under heading 6209, HTSUSA would not be proper.
Examining the relative weights of the remaining two chief components in the diaper/training pant, it is clear that the softwood pulp which accounts for 48% by weight of the absorbent core material predominates over the SAP which accounts for only 20% of the superabsorbent core material. In terms of absorptive capacity, however, the SAP is capable of absorbing 4 times as much liquid as the paper pulp fibers. Both the SAP and the pulp absorb fluids but the SAP is also a thickening agent capable of absorbing up to 800 times its own weight in distilled water or 300 times its own weight in tap water. Because of the SAP, the removal of the fluid from the surface of the body is unidirectional and irreversible. According to the Customs laboratory, the properties of the SAP are that it starts to absorb and encapsulate water within a few seconds after exposure. The SAP cannot, however, function alone. The fluid must first be captured by the paper pulp in order to be absorbed by the SAP. The SAP is a powdery substance and would not be capable of providing its absorptive function without the paper pulp. While the SAP can absorb liquids on its own, the paper pulp is required to hold the powder in place and act as an “initial reservoir” for the bodily fluids. Accordingly, both the paper pulp and the SAP are necessary components that give the diaper/training pant its essential character.
Having concluded that the diaper/training pant cannot be classified as if it consisted of the material or component which gives it its essential character, we must turn to GRI 3(c). GRI 3(c) states that when goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. In this case, the diaper/training pant is properly classifiable in subheading 4818.40.2000, HTSUSA, as heading 4818, HTUSA, appears after heading 3926, HTSUSA, in the Harmonized Tariff Schedule. This holding is consistent with several other rulings classifying diaper pants and adult diapers in heading 4818.40.2000, HTSUSA. See HQ 082012, dated April 5, 1989; HQ 082754, dated November 16, 1988 (as paper products under the Tariff Schedules of the United States of America); NY 886260, dated July 7, 1993; NY 883200, March 15, 1993.
HOLDING:
The diaper/training pant is properly classified in subheading, 4818.40.2000, HTSUSA, which provides for “Toilet paper and similar paper, cellulose wadding or webs of cellulose fibers, of a kind used for household or sanitary purposes, in rolls of a width not exceeding 36 cm, or cut to size or shape; handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, diapers, tampons, bed sheets and similar household, sanitary or hospital articles, articles of apparel and clothing accessories, of paper pulp, paper, cellulose wadding or webs of cellulose fibers; Sanitary napkins and tampons, diapers and diaper liners and similar sanitary articles: Of paper pulp.” The general column one rate of duty is free.
Sincerely,
John Durant, Director
Commercial Rulings Division